S SASIKALA SAMPATH Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) (Prayer: Petition under Article 226 of the Constitution of India, praying for the issue of a Writ of Habeas Corpus, calling for the records relating to the proceedings of the second respondent made in Cr.M.P.No.01/NSA/2009 dated 14.03.2009 and quash the same and direct the respondents to produce the corpus of the detenu Naanchil Sampath son of M.Baskaran, now detained at the Central Prison, Coimbatore before this Hon'ble Court and set him at liberty. D. Murugesan, J. The petitioner Tmt.S.Sasikala Sampath is the wife of the detenu Thiru Naanchil Sampath, who has been detained under Section 3(2) of the National Security Act, 1980 by the detention order dated 14.3.2009 passed by the District Magistrate and District Collector, Tirupur District.

(2.) THE detention order came to be passed under the following circumstances. THE Liberation Tigers of Tamil Eelam (LTTE) is an unlawful association under the Unlawful Activities (Prevention) Act, 1976 and banned by the Government of India and republished in the Tamil Nadu Government Gazette Extraordinary ordered vide G.O.Ms.No.606, Public (SC) Department dated 16.05.2008. THE said LTTE continues to remain a strong terrorist movement and stimulate the secessionist sentiments to enhance the support base of the LTTE in Tamil Nadu as long as Srilanka continues to remain in a state of ethnic strife born by the demand for Tamil Eelam which finds a strong echo in Tamil Nadu due to the linguistic, cultural, ethnic and historical affinity between the Srilankan Tamils and the Indian Tamils.

(3.) THE said detention order is assailed before this Court. Mr.Vaiko, learned counsel for the petitioner advanced his arguments primarily on the following three grounds: (i) THE material papers running 212 pages were placed before the detaining authority on 14.3.2009, the day on which the detention order was passed. It is humanly impossible for the detaining authority to apply his mind to arrive at the subjective satisfaction that the detenu must be detained. Application of mind by the detaining authority is not a mere formality and it must be real and must be such that it should satisfy the Court as to the application of mind. A mere awareness as to the materials by the detaining authority is not sufficient, as the satisfaction based on those materials by proper application of mind is relevant. (ii) At the time the bail order was passed, the detenu filed a written statement before the Court and the copy of the written statement is not furnished to him. THE contents of the written statement are relevant and the failure on the part of the sponsoring authority to place the said written statement before the detaining authority and consequently the failure on the part of the detaining authority in not considering the same and also to furnish such a copy to the detenu would vitiate the detention order. He would further submit that considering the defence taken by the detenu, the learned Magistrate had granted bail. THE contents of the bail order are relevant for the detaining authority to arrive at satisfaction regarding compelling necessity to pass the detention order. THEre is no application of mind by the detaining authority as to the contents of the bail order except stating that there is an imminent possibility of the detenu coming out on bail after coming to know that the bail has been already ordered. Had the detaining authority applied his mind to the contents of the bail order, he would not have arrived at the satisfaction to pass detention order, which exhibits total non-application of mind to the bail order. (iii) A single speech delivered by the detenu cannot be the basis for the detention order and that too, the said speech was delivered due to the ordeals faced by Tamils in Srilanka and the said speech does not in any way intend to affect the national security. In any case, the speech was delivered within a closed premises, wherein only 350 participants including five women were present, and no materials were placed before the detaining authority to indicate any act prejudicial to the public order had occurred after the speech. THE intention to indulge in activities which are prejudicial to the maintenance of public order must be supported by materials, as the mens rea is also a relevant factor. In the absence of those materials, particularly, no untoward incident prejudicial to the maintenance of public order had occurred after the delivery of speech between 1.3.2009 and 7.3.2009 when the detenu was arrested and in fact no occurrence prejudicial to the public order took place even after his arrest. Hence there is absolutely no materials to show that the detenu had indulged in activities which are prejudicial to the maintenance of public order and therefore the satisfaction of the detaining authority to pass the detention order only to prevent the detenu from indulging in such activities is unsupported by any material and consequently the detention order is liable to be set aside.